As
filed with the Securities and Exchange Commission on August 1, 2023
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
NanoVibronix,
Inc.
(Exact
name of registrant as specified in its charter)
Delaware |
|
01-0801232 |
(State
or other jurisdiction of
incorporation
or organization) |
|
(I.R.S.
Employer
Identification
Number) |
525
Executive Blvd.
Elmsford,
New York 10523
(914)
233-3004
(Address,
including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Brian
Murphy
Chief
Executive Officer
NanoVibronix,
Inc.
525
Executive Blvd.
Elmsford,
New York
(914)
233-3004
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copies
of all communications, including communications sent to agent for service, should be sent to:
Rick
A. Werner, Esq.
Jayun
Koo, Esq.
Haynes
and Boone, LLP
30
Rockefeller Plaza, 26th Floor
New
York, New York 10112
Tel.
(212) 659-7300
Fax
(212) 884-8234
Approximate
date of commencement of proposed sale to the public: From time to time after this Registration Statement becomes effective.
If
the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check
the following box: ☐
If
any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following
box: ☒
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the earlier effective registration statement for the same
offering. ☐
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If
this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective
upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If
this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional
securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting
company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large
accelerated filer |
☐ |
Accelerated
filer |
☐ |
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Non-accelerated
filer |
☒ |
Smaller
reporting company |
☒ |
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Emerging
Growth company |
☐ |
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided to Section 7(a)(2)(B) of the Securities Act. ☐
THE
REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE
REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE
IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE
ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
The
information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement
filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not
soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
SUBJECT
TO COMPLETION, DATED August 1, 2023
PROSPECTUS
![](https://www.sec.gov/Archives/edgar/data/1326706/000149315223026278/forms-3_001.jpg)
NanoVibronix,
Inc.
$50,000,000
Common
Stock
Preferred
Stock
Warrants
Units
We
may offer and sell from time to time, in one or more series or issuances and on terms that we will determine at the time of the offering,
any combination of the securities described in this prospectus, up to an aggregate amount of $50,000,000.
We
will provide specific terms of any offering in a supplement to this prospectus. Any prospectus supplement may also add, update, or change
information contained in this prospectus. You should carefully read this prospectus and the applicable prospectus supplement as well
as the documents incorporated or deemed to be incorporated by reference in this prospectus before you purchase any of the securities
offered hereby.
These
securities may be offered and sold in the same offering or in separate offerings; to or through underwriters, dealers, and agents; or
directly to purchasers. The names of any underwriters, dealers, or agents involved in the sale of our securities, their compensation
and any over-allotment options held by them will be described in the applicable prospectus supplement. See “Plan of Distribution.”
Our
common stock is listed on the Nasdaq Capital Market under the symbol “NAOV.” On July 31, 2023, the last reported sale
price of our common stock as reported on the Nasdaq Capital Market was $3.21 per share. We recommend that you obtain current market
quotations for our common stock prior to making an investment decision. We will provide information in any applicable prospectus supplement
regarding any listing of securities other than shares of our common stock on any securities exchange.
As
of August 1, 2023, the aggregate market value of our outstanding common stock held by non-affiliates, or the public float, was approximately
$6,214,425, which was calculated based on 1,662,500 shares of our outstanding common stock held by non-affiliates and a price of $3.738
per share, the last reported sale price for our common stock on June 2, 2023. Pursuant to General Instruction I.B.6 of Form S-3, we have
offered 4,800,000 shares of common stock for a total of $2,400,000 during the 12 calendar months prior to and including the date of this
prospectus. Pursuant to General Instruction I.B.6 of Form S-3, in no event will we sell securities registered on this registration statement
of which any prospectus supplement forms a part in a public primary offering with a value exceeding one-third of our outstanding voting
and nonvoting common equity held by non-affiliates in any 12-month period so long as our public float remains below $75.0 million.
You
should carefully read this prospectus, any prospectus supplement relating to any specific offering of securities, and all information
incorporated by reference herein and therein.
Investing
in our securities involves a high degree of risk. These risks are discussed in this prospectus under “Risk Factors” beginning
on page 5 and in the documents incorporated by reference into this prospectus.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed
upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The
date of this prospectus is , 2023
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement on Form S-3 that we filed with the Securities and Exchange Commission using a “shelf”
registration process. Under this shelf process, we may, from time to time, sell any combination of the securities described in this prospectus
in one or more offerings up to a total amount of $50,000,000.
This
prospectus provides you with a general description of the securities we may offer. Each time we sell securities, we will provide a prospectus
supplement that will contain specific information about the terms of that offering. The prospectus supplement may also add to, update
or change information contained in the prospectus and, accordingly, to the extent inconsistent, information in this prospectus is superseded
by the information in the prospectus supplement.
The
prospectus supplement to be attached to the front of this prospectus may describe, as applicable: the terms of the securities offered;
the public offering price; the price paid for the securities; net proceeds; and the other specific terms related to the offering of the
securities.
You
should only rely on the information contained or incorporated by reference in this prospectus and any prospectus supplement or issuer
free writing prospectus relating to a particular offering. No person has been authorized to give any information or make any representations
in connection with this offering other than those contained or incorporated by reference in this prospectus, any accompanying prospectus
supplement and any related issuer free writing prospectus in connection with the offering described herein and therein, and, if given
or made, such information or representations must not be relied upon as having been authorized by us. Neither this prospectus nor any
prospectus supplement nor any related issuer free writing prospectus shall constitute an offer to sell or a solicitation of an offer
to buy offered securities in any jurisdiction in which it is unlawful for such person to make such an offering or solicitation. This
prospectus does not contain all of the information included in the registration statement. For a more complete understanding of the offering
of the securities, you should refer to the registration statement, including its exhibits.
You
should read the entire prospectus and any prospectus supplement and any related issuer free writing prospectus, as well as the documents
incorporated by reference into this prospectus or any prospectus supplement or any related issuer free writing prospectus, before making
an investment decision. Neither the delivery of this prospectus or any prospectus supplement or any issuer free writing prospectus nor
any sale made hereunder shall under any circumstances imply that the information contained or incorporated by reference herein or in
any prospectus supplement or issuer free writing prospectus is correct as of any date subsequent to the date hereof or of such prospectus
supplement or issuer free writing prospectus, as applicable. You should assume that the information appearing in this prospectus, any
prospectus supplement or any document incorporated by reference is accurate only as of the date of the applicable documents, regardless
of the time of delivery of this prospectus or any sale of securities. Our business, financial condition, results of operations and prospects
may have changed since that date.
PROSPECTUS
SUMMARY
This
summary provides an overview of selected information contained elsewhere or incorporated by reference in this prospectus and does not
contain all of the information you should consider before investing in our securities. You should carefully read the prospectus, the
information incorporated by reference and the registration statement of which this prospectus is a part in their entirety before investing
in our securities, including the information discussed under “Risk Factors” in this prospectus and the documents incorporated
by reference and our financial statements and related notes that are incorporated by reference in this prospectus. As used in this prospectus,
unless the context otherwise indicates, the terms “we,” “our,” “us,” or “the Company”
refer to NanoVibronix, Inc., a Delaware corporation, and its subsidiaries taken as a whole.
Overview
We
are a medical device company focusing on noninvasive biological response-activating devices that target wound healing and pain therapy
and can be administered at home, without the assistance of medical professionals. Our primary products, which are in various stages of
clinical and market development, currently consist of:
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UroShield™,
an ultrasound-based product that is designed to prevent bacterial colonization and biofilm in urinary catheters, increase antibiotic
efficacy and decrease pain and discomfort associated with urinary catheter use. |
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PainShield™,
a patch-based therapeutic ultrasound technology to treat pain, muscle spasm and joint contractures by delivering a localized ultrasound
effect to treat pain and induce soft tissue healing in a targeted area; and |
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WoundShield™,
a patch-based therapeutic ultrasound device intended to facilitate tissue regeneration and wound healing by using ultrasound to increase
local capillary perfusion and tissue oxygenation. |
Each
of our PainShield, UroShield, and WoundShield products employs a small, disposable transducer that transmits low frequency, low intensity
ultrasound acoustic waves that seek to repair and regenerate tissue, musculoskeletal and vascular structures, and decrease biofilm formation
on urinary catheters and associated urinary tract infections. Through their size, effectiveness and ease of use, these products are intended
to eliminate the need for technicians and medical personnel to manually administer ultrasound treatment through large transducers, thereby
promoting patient independence and enabling more cost-effective home-based care.
PainShield
is currently cleared for marketing in the United States by the U.S. Food and Drug Administration although to date there has not been
a significant sales and marketing effort. All three of our products have CE Mark approval in the European Union, and a certificate allowing
us to sell PainShield, UroShield and WoundShield in Israel. We are able to sell PainShield, UroShield and WoundShield in India and Ecuador
based on our CE Mark. We have consummated sales of PainShield and UroShield in the relevant markets, although to date sales have been
minimal; WoundShield has not generated significant revenue to date. Outside of the United States we generally apply, through our distributor,
for approval in a particular country for a particular product only when we have a distributor in place with respect to such product.
Intellectual
Property – Patents
We
seek patent protection for our inventions not only to differentiate our products and technologies, but also to develop opportunities
for licensing and securing our rights to profits therefrom. With the aim of optimizing commercial and regulatory success, our proprietary
technology and innovative applications thereof are protected by a variety of patent claims. We believe that our granted patents and pending
applications collectively protect our technology, both in terms of our existing products, as well as our anticipated pipeline of new
offerings.
Our
patent portfolio includes at least the following issued patents, as well as a number of corresponding foreign patents in relevant jurisdictions:
(1) U.S. Patent No. 7,393,501 to “Method, Apparatus and System for Treating Biofilms Associated With Catheters” (expiring
on December 19, 2023); (2) U.S. Patent No. 7,829,029 to “Acoustic Add-On Device for Biofilm Prevention in Urinary Catheter”
(expiring on October 27, 2025); (3) U.S. Patent No. 9,028,748 to “System and Method for Surface Acoustic Wave Treatment of Medical
Devices” (expiring on July 11, 2030); and (4) U.S. Patent No. 9,585,977 directed to “System and Method for Surface
Acoustic Waves Treatment of Skin” (expiring on August 20, 2033). These patents cover a wide range of embodiments and applications
of our proprietary surface acoustic wave (SAW) technology, including our commercialized Painshield, Painshield Plus, Woundshield and
Uroshield devices. Specifically, the patents provide for methods of generating surface acoustic waves on surfaces of indwelling medical
devices and to topical and urological applications therefor, for alleviating pain and for wound healing, and for preventing formation
of bacterial biofilms on catheters. Pending patent applications related to Uroshield devices are directed to Multiple Frequency Surface
Acoustic Waves for Internal Medical Device and System, Device, and Method for Mitigating Bacterial Biofilms Associated with Indwelling
Medical Devices which covers the next generation of Uroshield devices operating at multiple frequencies and devices which are compatible
in portable and wireless systems. Another pending patent application related to Uroshield devices is directed to System, Device, and
Method for Mitigating Bacterial Biofilms Associated with Indwelling Medical Devices (US patent application US 17/646,715 filed on
December 31, 2021).
Pending
patent applications related to Painshield, Painshield Plus, Woundshield devices are directed to Transdermal Patch of a Portable Ultrasound-Generating
System for Improved Delivery of Therapeutic Agents and Associated Methods of Treatment (US patent application 17/025,969 filed on
September 18, 2020); Portable Ultrasound System and Methods of Treating Facial Skin by Application of Surface Acoustic Waves (US
patent application 17/646,753 filed on January 3, 2022) and Improved Injection Needle Assembly (US patent application 17/646,804
filed on December 31, 2021).
Nasdaq
Minimum Stockholders’ Equity Requirement
On
May 23, 2023, we received a letter from the Listing Qualifications Department of the Nasdaq Capital Market (“Nasdaq”) indicating
that we no longer comply with the minimum stockholders’ equity requirement under Nasdaq Listing Rule 5550(b)(1) for continued listing
on Nasdaq because our stockholders’ equity of approximately $2.2 million as reported in our Quarterly Report on Form 10-Q for the
period ended March 31, 2023, is below the required minimum of $2.5 million, and as of May 22, 2023, we did not meet the alternative compliance
standards relating to the market value of listed securities of $35 million or net income from continuing operations of $500,000 in the
most recently completed fiscal year or in two of the last three most recently completed fiscal years.
In
accordance with Nasdaq Listing Rules, we had 45 calendar days, or until July 7, 2023, to submit a plan to regain compliance. On July
7, 2023 we submitted our plan to regain compliance with the Nasdaq minimum stockholders’ equity standard. On July 13, 2023 we submitted
additional information to Nasdaq. On July 19, 2023, Nasdaq granted the Company an extension until November 20, 2023, to evidence compliance.
However, there can be no assurance that we will be able to regain compliance. If we do not regain compliance by the end of the extension
granted by Nasdaq, or we fail to satisfy another Nasdaq requirement for continued listing, Nasdaq staff could provide notice that our
common stock will become subject to delisting. In such event, Nasdaq rules permit us to appeal the decision to reject its proposed compliance
plan or any delisting determination to a Nasdaq Hearings Panel. Accordingly, there can be no guarantee that we will be able to maintain
our Nasdaq listing.
Mio-Guard
Agreement
On
June 14, 2023 we announced that we entered into a distribution agreement with Mio-Guard, LLC (“Mio-Guard”) for the sale and
distribution of our PainShield MD product. Under the terms of the multi-year agreement, Mio-Guard has the exclusive right to sell and
distribute the PainShield MD product to its customers throughout the United States in the areas of athletic team sports and sports medicine.
CMS
Reimbursement
In
addition to the need to obtain regulatory approvals, we anticipate that sales volumes and prices of our UroShield and PainShield, products
will depend in large part on the availability of insurance coverage and reimbursement from third party payers. Third party payers include
governmental programs such as Medicare and Medicaid in the United States, private insurance plans and workers’ compensation plans.
We do not currently have reimbursement codes for use of WoundShield in any of the markets in which we have regulatory authority to sell
WoundShield. Of the markets in which we have regulatory authority to sell PainShield, prior to January 2020, we only had reimbursement
codes in the United States (i.e., CPT codes) for clinical use only. Effective as of January 2020, the U.S. Centers for Medicare and Medicaid
Services (“CMS”) approved our PainShield for reimbursement for Medicare beneficiaries on a national basis. We have been actively
taking steps to work toward having CMS assign a reimbursement value, including conducting additional longevity testing by an independent
laboratory and launching a direct-to-consumer rental program for PainShield, as we were denied reimbursement in September 2022 due to
a lack of “life-cycle” testing. We have recently provided CMS with additional data and continue to work with qualified legal
representation to achieve our goal. The latest CMS application included PainShield products and supplies. PainShield currently is subject
to reimbursement under certain workers’ compensation plans and Veterans Administration facilities.
We hope to receive a decision from CMS regarding
PainShield reimbursement by sometime in September.
Protrade
Proceeding
On
February 26, 2021, Protrade Systems, Inc. (“Protrade”) filed a Request for Arbitration (the “Request”) with the
International Court of Arbitration (the “ICA”) of the International Chamber of Commerce alleging that we were in breach of
an Exclusive Distribution Agreement dated March 7, 2019 (the “Distribution Agreement”) between Protrade and the Company.
Protrade alleges, in part, that we breached the Distribution Agreement by discontinuing the manufacture of the DV0057 Painshield MD device
in favor of an updated 10-100-001 Painshield MD device. Protrade claims damages estimated at $3 million.
On
March 15, 2022, the arbitrator issued a final award, which, determined that (i) we had the right to terminate the Distribution Agreement;
(ii) we did not breach the duty of good faith and fair dealing with regard to the Distribution Agreement; and (iii) we did not breach
any confidentiality obligations to Protrade. Nevertheless the arbitrator determined that we did not comply with the obligation to supply
Protrade with a year’s supply of patches, and awarded Protrade $1,500,250, which consists of $1,432,000 for “lost profits”
and $68,250 as reimbursement of arbitration costs, on the grounds that we allegedly failed to supply Protrade with certain patches utilized
by users of DV0057 Painshield MD device. The arbitrator based the decision on the testimony of Protrade’s president who asserted
that a user would use in excess of 33 patches per each device. We believe that the number of patches per device alleged by Protrade is
grossly inflated, and that these claims were not properly raised before the arbitrator. Accordingly, on April 13, 2022, we submitted
an application for the correction of the award which the arbitrator denied on June 22, 2022.
On
April 5, 2022, Protrade filed a Petition with the Supreme Court of New York Nassau County seeking to confirm the Award. On April 13,
2022, we submitted an application to the ICA seeking to correct an error in the award based on the evidence that we only sold 2-3 reusable
patches per device contrary to the 33 reusable patches claimed by Protrade. The same arbitrator who issued the award, denied the application.
On
July 22, 2022, we filed a cross-motion seeking to vacate arbitration award on the grounds that the arbitrator exceeded her authority,
that the award was procured by fraud, and that the arbitrator failed to follow procedures established by New York law. In particular,
we averred in our motion that Protrade’s witness made false statements in arbitration, and that the arbitrator resolved a claim
that was never raised by Protrade and that has no factual basis.
On
October 3, 2022, the court issued a decision granting Protrade its petition to confirm the Award and denying the cross-motion.
On
November 9, 2022, we filed a motion to re-argue and renew our cross-motion to vacate the arbitration decision based on newer information
that was not available during the initial hearing. On the same day, we also filed a notice of appeal with the Appellate Division, Second
Department. On March 21, 2023, the Court denied the motion to re-argue and renew. We filed a notice of appeal of this decision with the
Appellate Division, Second Department on April 5, 2023.
On
July 10, 2023, we filed our appeal with the Appellate Division, Second Department. We intend to continue to vigorously pursue our opposition
to the award in all appropriate fora.
Corporate
Information
We
were organized in the State of Delaware on October 20, 2003. Our principal executive offices are located at 525 Executive Boulevard,
Elmsford, New York 10523. Our telephone number is (914) 233-3004. Our website address is www.nanovibronix.com. Information accessed through
our website is not incorporated into this prospectus and is not a part of this prospectus.
The
Securities We May Offer
We
may offer up to $50,000,000 of common stock, preferred stock, warrants and/or units in one or more offerings and in any combination.
This prospectus provides you with a general description of the securities we may offer. A prospectus supplement, which we will provide
each time we offer securities, will describe the specific amounts, prices and terms of these securities.
Common
Stock
We
may issue shares of our common stock from time to time. The holders of common stock are entitled to one vote per share. Our certificate
of incorporation does not provide for cumulative voting. All of our directors hold office for one-year terms until the election and qualification
of their successors. The holders of our common stock are entitled to receive ratably such dividends, if any, as may be declared by the
board of directors out of legally available funds. Upon liquidation, dissolution or winding-up, the holders of our common stock are entitled
to share ratably in all assets that are legally available for distribution. The holders of our common stock have no preemptive, subscription,
redemption or conversion rights. The rights, preferences and privileges of holders of our common stock are subject to, and may be adversely
affected by, the rights of the holders of any series of preferred stock, which may be designated solely by action of the board of directors
and issued in the future.
Preferred
Stock
We
may issue shares of our preferred stock from time to time, in one or more series. Our board of directors will determine the rights, preferences,
privileges and restrictions of the preferred stock, including dividend rights, conversion rights, voting rights, terms of redemption,
liquidation preferences, sinking fund terms and the number of shares constituting any series or the designation of such series, without
any further vote or action by stockholders. Convertible preferred stock will be convertible into our common stock or exchangeable for
our other securities. Conversion may be mandatory or at your option or both and would be at prescribed conversion rates.
If
we sell any series of preferred stock under this prospectus and applicable prospectus supplements, we will fix the rights, preferences,
privileges and restrictions of the preferred stock of such series in the certificate of designation relating to that series. We will
file as an exhibit to the registration statement of which this prospectus is a part, or will incorporate by reference from reports that
we file with the Securities and Exchange Commission, the form of any certificate of designation that describes the terms of the series
of preferred stock we are offering before the issuance of the related series of preferred stock. We urge you to read the applicable prospectus
supplement related to the series of preferred stock being offered, as well as the complete certificate of designation that contains the
terms of the applicable series of preferred stock.
Warrants
We
may issue warrants for the purchase of common stock or preferred stock in one or more series. We may issue warrants independently or
together with common stock or preferred stock, and the warrants may be attached to or separate from these securities. We will evidence
each series of warrants by warrant certificates that we will issue under a separate agreement. We may enter into warrant agreements with
a bank or trust company that we select to be our warrant agent. We will indicate the name and address of the warrant agent in the applicable
prospectus supplement relating to a particular series of warrants.
In
this prospectus, we have summarized certain general features of the warrants. We urge you, however, to read the applicable prospectus
supplement related to the particular series of warrants being offered, as well as the warrant agreements and warrant certificates that
contain the terms of the warrants. We will file as exhibits to the registration statement of which this prospectus is a part, or will
incorporate by reference from reports that we file with the Securities and Exchange Commission, the form of warrant agreement or warrant
certificate containing the terms of the warrants we are offering before the issuance of the warrants.
Units
We
may issue units consisting of common stock, preferred stock and/or warrants for the purchase of common stock or preferred stock in one
or more series. In this prospectus, we have summarized certain general features of the units. We urge you, however, to read the applicable
prospectus supplement related to the series of units being offered, as well as the unit agreements that contain the terms of the units.
We will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference reports that
we file with the Securities and Exchange Commission, the form of unit agreement and any supplemental agreements that describe the terms
of the series of units we are offering before the issuance of the related series of units.
RISK
FACTORS
An
investment in our securities involves a high degree of risk. The prospectus supplement applicable to each offering of our securities
will contain a discussion of the risks applicable to an investment in our securities. Before deciding whether to invest in our securities,
you should carefully consider the specific factors discussed under the heading “Risk Factors” in the applicable prospectus
supplement, together with all of the other information contained or incorporated by reference in the prospectus supplement or appearing
or incorporated by reference in this prospectus. You should also consider the risks, uncertainties and assumptions discussed under Item
1A, “Risk Factors,” in our most recent Annual Report on Form 10-K or any updates in our Quarterly Reports on Form 10-Q, together
with all other information appearing in or incorporated by reference into this prospectus or the applicable prospectus supplement, before
deciding whether to purchase any securities being offered. If any of these risks actually occurs, our business, business prospects, financial
condition or results of operations could be seriously harmed. This could cause the trading price of our common stock to decline, resulting
in a loss of all or part of your investment. The risks and uncertainties we have described are not the only ones we face. Additional
risks and uncertainties not presently known to us or that we currently deem immaterial may also affect our operations. Past financial
performance may not be a reliable indicator of future performance, and historical trends should not be used to anticipate results or
trends in future periods. If any of these risks actually occurs, our business, business prospects, financial condition or results of
operations could be seriously harmed. This could cause the trading price of our common stock to decline, resulting in a loss of all or
part of your investment. Please also read carefully the section below entitled “Special Note Regarding Forward-Looking Statements.”
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus, each prospectus supplement and the information incorporated by reference in this prospectus and each prospectus supplement
contain “forward-looking statements,” which include information relating to future events, future financial performance,
strategies, expectations, competitive environment and regulation. Words such as “may,” “should,” “could,”
“would,” “predicts,” “potential,” “continue,” “expects,” “anticipates,”
“future,” “intends,” “plans,” “believes,” “estimates,” and similar expressions,
as well as statements in future tense, are intended to identify forward-looking statements. Forward-looking statements should not be
read as a guarantee of future performance or results and may not be accurate indications of when such performance or results will actually
be achieved. Forward-looking statements are based on information we have when those statements are made or our management’s good
faith belief as of that time with respect to future events, and are subject to risks and uncertainties that could cause actual performance
or results to differ materially from those expressed in or suggested by the forward-looking statements. Important factors that could
cause such differences include, but are not limited to:
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Our
history of losses and expectation of continued losses |
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Global
economic and political instability and conflicts, such as the conflict between Russia and Ukraine, could adversely affect our business,
financial condition or results of operations. |
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Increasing
inflation could adversely affect our business, financial condition, results of operations or cash flows. |
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The
geographic, social and economic impact of COVID-19 on the Company’s business operations. |
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Our
ability to raise funding for, and the timing of, clinical studies and eventual U.S. Food and Drug Administration (“FDA”)
approval of our product candidates. |
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Regulatory
actions that could adversely affect the price of or demand for our approved products. |
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Market
acceptance of existing and new products. |
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Favorable
or unfavorable decisions about our products from government regulators, insurance companies or other third-party payers (including
CMS). |
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Risks
of product liability acclaims and the availability of insurance. |
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Our
ability to generate internal growth. |
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Risks
related to computer system failures and cyber-attacks. |
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Our
ability to obtain regulatory approval in foreign jurisdictions. |
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Uncertainty
regarding the success of our clinical trials for our products in development. |
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Risks
related to our operations in Israel, including political, economic and military instability. |
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The
price of our securities is volatile with limited trading volume. |
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Our
ability to regain compliance with the continued listing requirements of the Nasdaq Capital Market and the risk that our common stock
will be delisted if we cannot do so. |
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Our
ability to maintain effective internal control over financial reporting and to remedy identified material weaknesses. |
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We
are a “smaller reporting company” and have reduced disclosure obligations that may make our stock less attractive to
investors. |
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Our
intellectual property portfolio and our ability to protect our intellectual property rights. |
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Our
ability to recruit and retain qualified regulatory and research and development personnel. |
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Unforeseen
changes in healthcare reimbursement for any of our approved products. |
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The
adoption of health policy changes and health care reform. |
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Lack
of financial resources to adequately support our operations. |
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Difficulties
in maintaining commercial scale manufacturing capacity and capability. |
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Changes
in our relationship with key collaborators. |
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Changes
in the market valuation or earnings of our competitors or companies viewed as similar to us. |
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Our
failure to comply with regulatory guidelines. |
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Uncertainty
in industry demand and patient wellness behavior. |
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General
economic conditions and market conditions in the medical device industry. |
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Future
sales of large blocks of our common stock, which may adversely impact our stock price. |
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Depth
of the trading market in our common stock. |
You
should read this prospectus, the applicable prospectus supplement and any related free-writing prospectus and the documents incorporated
by reference in this prospectus with the understanding that our actual future results, levels of activity, performance and events and
circumstances may be materially different from what we expect. The forward-looking statements contained or incorporated by reference
in this prospectus or any prospectus supplement are expressly qualified in their entirety by this cautionary statement. We do not undertake
any obligation to publicly update any forward-looking statement to reflect events or circumstances after the date on which any such statement
is made or to reflect the occurrence of unanticipated events.
USE
OF PROCEEDS
Unless
we specify another use in the applicable prospectus supplement, we will use the net proceeds from the sale of the securities offered
by us for general corporate purposes, including funding of our development programs, commercial planning and sales and marketing expenses,
general and administrative expenses and working capital
Investors
are cautioned, however, that expenditures may vary substantially from these uses. Investors will be relying on the judgment of our management,
who will have broad discretion regarding the application of the proceeds of this offering. The amounts and timing of our actual expenditures
will depend upon numerous factors, including the amount of cash generated by our operations, the amount of competition and other operational
factors. We may find it necessary or advisable to use portions of the proceeds from this offering for other purposes.
From
time to time, we evaluate these and other factors and we anticipate continuing to make such evaluations to determine if the existing
allocation of resources, including the proceeds of this offering, is being optimized. Circumstances that may give rise to a change in
the use of proceeds include:
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a
change in development plan or strategy; |
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the
addition of new products or applications; |
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technical
delays; |
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delays
or difficulties with our clinical trials; |
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negative
results from our clinical trials; |
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difficulty
obtaining U.S. Food and Drug Administration approval; |
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failure
to achieve sales as anticipated; and |
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the
availability of other sources of cash including cash flow from operations and new bank debt financing arrangements, if any. |
Pending
other uses, we intend to invest the proceeds to us in investment-grade, interest-bearing securities such as money market funds, certificates
of deposit, or direct or guaranteed obligations of the U.S. government, or hold as cash. We cannot predict whether the proceeds invested
will yield a favorable, or any, return.
DESCRIPTION
OF CAPITAL STOCK
The
following description of common stock and preferred stock summarizes the material terms and provisions of the common stock and preferred
stock that we may offer under this prospectus, but is not complete. For the complete terms of our common stock and preferred stock, please
refer to our amended and restated certificate of incorporation, as amended, any certificates of designation for our preferred stock,
and our amended and restated bylaws, as may be amended from time to time. While the terms we have summarized below will apply generally
to any future common stock or preferred stock that we may offer, we will describe the specific terms of any series of preferred stock
in more detail in the applicable prospectus supplement. If we so indicate in a prospectus supplement, the terms of any preferred stock
we offer under that prospectus supplement may differ from the terms we describe below.
We
have authorized 45,040,000 shares of capital stock, par value $0.001 per share, of which 40,000,000 are shares of common stock and 5,040,000
are shares of “blank check” preferred stock. Of the 5,040,000 shares of preferred stock, 3,000,000 are designated as Series
C Convertible Preferred Stock (“Series C Preferred Stock”), 506 are designated as Series D Convertible Preferred Stock (“Series
D Preferred Stock”), 1,994,494 are designated as Series E Convertible Preferred Stock (“Series E Preferred Stock”)
and 40,000 of which have been designated as Series F Convertible Preferred Stock (“Series F Preferred Stock”). On July 7,
2023, there were 1,662,337 shares of common stock, 0 shares of our Series C Preferred Stock, 0 shares of our Series D Preferred Stock,
0 shares of our Series E Preferred Stock, and 0 shares of Series F Preferred Stock issued and outstanding. The authorized and unissued
shares of common stock and the authorized and undesignated shares of preferred stock are available for issuance without further action
by our stockholders, unless such action is required by applicable law or the rules of any stock exchange on which our securities may
be listed. Unless approval of our stockholders is so required, our board of directors does not intend to seek stockholder approval for
the issuance and sale of our common stock or preferred stock.
Common
Stock
The
holders of common stock are entitled to one vote per share. Our certificate of incorporation does not provide for cumulative voting.
All of our directors hold office for one-year terms until the election and qualification of their successors. The holders of our common
stock are entitled to receive ratably such dividends, if any, as may be declared by the board of directors out of legally available funds.
Upon liquidation, dissolution or winding-up, the holders of our common stock are entitled to share ratably in all assets that are legally
available for distribution. The holders of our common stock have no preemptive, subscription, redemption or conversion rights. The rights,
preferences and privileges of holders of our common stock are subject to, and may be adversely affected by, the rights of the holders
of any series of preferred stock, which may be designated solely by action of the board of directors and issued in the future.
The
transfer agent and registrar for our common stock is VStock Transfer, LLC. The transfer agent’s address is 18 Lafayette Place,
Woodmere, New York 11598. Our common stock is listed on the Nasdaq Capital Market under the symbol “NAOV.”
Preferred
Stock
The
board of directors is authorized, subject to any limitations prescribed by law, without further vote or action by the stockholders, to
issue from time to time shares of preferred stock in one or more series. Each such series of preferred stock shall have such number of
shares, designations, preferences, voting powers, qualifications, and special or relative rights or privileges as shall be determined
by the board of directors, which may include, among others, dividend rights, voting rights, liquidation preferences, conversion rights
and preemptive rights. Issuance of preferred stock by our board of directors may result in such shares having dividend and/or liquidation
preferences senior to the rights of the holders of our common stock and could dilute the voting rights of the holders of our common stock.
Prior
to the issuance of shares of each series of preferred stock, the board of directors is required by the Delaware General Corporation Law
and our certificate of incorporation to adopt resolutions and file a certificate of designation with the Secretary of State of the State
of Delaware. The certificate of designation fixes for each class or series the designations, powers, preferences, rights, qualifications,
limitations and restrictions, including, but not limited to, some or all of the following:
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the
number of shares constituting that series and the distinctive designation of that series, which number may be increased or decreased
(but not below the number of shares then outstanding) from time to time by action of the board of directors; |
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the
dividend rate and the manner and frequency of payment of dividends on the shares of that series, whether dividends will be cumulative,
and, if so, from which date; |
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whether
that series will have voting rights, in addition to any voting rights provided by law, and, if so, the terms of such voting rights; |
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whether
that series will have conversion privileges, and, if so, the terms and conditions of such conversion, including provision for adjustment
of the conversion rate in such events as the board of directors may determine; |
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whether
or not the shares of that series will be redeemable, and, if so, the terms and conditions of such redemption; |
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whether
that series will have a sinking fund for the redemption or purchase of shares of that series, and, if so, the terms and amount of
such sinking fund; |
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whether
or not the shares of the series will have priority over or be on a parity with or be junior to the shares of any other series or
class in any respect; |
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the
rights of the shares of that series in the event of voluntary or involuntary liquidation, dissolution or winding up of the corporation,
and the relative rights or priority, if any, of payment of shares of that series; and |
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any
other relative rights, preferences and limitations of that series. |
Once
designated by our board of directors, each series of preferred stock may have specific financial and other terms that will be described
in a prospectus supplement. The description of the preferred stock that is set forth in any prospectus supplement is not complete without
reference to the documents that govern the preferred stock. These include our certificate of incorporation and any certificates of designation
that our board of directors may adopt.
All
shares of preferred stock offered hereby will, when issued, be fully paid and nonassessable, including shares of preferred stock issued
upon the exercise of preferred stock warrants or subscription rights, if any.
Although
our board of directors has no intention at the present time of doing so, it could authorize the issuance of a series of preferred stock
that could, depending on the terms of such series, impede the completion of a merger, tender offer or other takeover attempt.
Delaware
Anti-Takeover Law, Provisions of our Certificate of Incorporation and Bylaws
Delaware
Anti-Takeover Law
We
are subject to Section 203 of the Delaware General Corporation Law. Section 203 generally prohibits a public Delaware corporation from
engaging in a “business combination” with an “interested stockholder” for a period of three years after the date
of the transaction in which the person became an interested stockholder, unless:
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prior
to the date of the transaction, the board of directors of the corporation approved either the business combination or the transaction
which resulted in the stockholder becoming an interested stockholder; |
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the
interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced,
excluding for purposes of determining the number of shares outstanding (i) shares owned by persons who are directors and also officers
and (ii) shares owned by employee stock plans in which employee participants do not have the right to determine confidentially whether
shares held subject to the plan will be tendered in a tender or exchange offer; or |
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on
or subsequent to the date of the transaction, the business combination is approved by the board and authorized at an annual or special
meeting of stockholders, and not by written consent, by the affirmative vote of at least 66 2/3% of the outstanding voting stock
which is not owned by the interested stockholder. |
Section
203 defines a business combination to include:
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any
merger or consolidation involving the corporation and the interested stockholder; |
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any
sale, transfer, pledge or other disposition involving the interested stockholder of 10% or more of the assets of the corporation; |
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subject
to exceptions, any transaction that results in the issuance or transfer by the corporation of any stock of the corporation to the
interested stockholder; |
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any
transaction involving the corporation that has the effect of increasing the proportionate share of the stock or any class or series
of the corporation beneficially owned by the interested stockholder; or |
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the
receipt by the interested stockholder of the benefit of any loans, advances, guarantees, pledges or other financial benefits provided
by or through the corporation. |
In
general, Section 203 defines an “interested stockholder” as any entity or person beneficially owning 15% or more of the outstanding
voting stock of the corporation and any entity or person affiliated with, or controlling, or controlled by, the entity or person. The
term “owner” is broadly defined to include any person that, individually, with or through that person’s affiliates
or associates, among other things, beneficially owns the stock, or has the right to acquire the stock, whether or not the right is immediately
exercisable, under any agreement or understanding or upon the exercise of warrants or options or otherwise or has the right to vote the
stock under any agreement or understanding, or has an agreement or understanding with the beneficial owner of the stock for the purpose
of acquiring, holding, voting or disposing of the stock.
The
restrictions in Section 203 do not apply to corporations that have elected, in the manner provided in Section 203, not to be subject
to Section 203 of the Delaware General Corporation Law or, with certain exceptions, which do not have a class of voting stock that is
listed on a national securities exchange or held of record by more than 2,000 stockholders. Our certificate of incorporation and bylaws
do not opt out of Section 203.
Section
203 could delay or prohibit mergers or other takeover or change in control attempts with respect to us and, accordingly, may discourage
attempts to acquire us even though such a transaction may offer our stockholders the opportunity to sell their stock at a price above
the prevailing market price.
Certificate
of Incorporation and Bylaws
Provisions
of our certificate of incorporation and bylaws may delay or discourage transactions involving an actual or potential change in our control
or change in our management, including transactions in which stockholders might otherwise receive a premium for their shares, or transactions
that our stockholders might otherwise deem to be in their best interests. Therefore, these provisions could adversely affect the price
of our common stock. Among other things, our certificate of incorporation and bylaws:
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permit
our board of directors to issue up to 11,000,000 shares of preferred stock, without further action by the stockholders, with any
rights, preferences and privileges as they may designate, including the right to approve an acquisition or other change in control; |
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provide
that the authorized number of directors may be changed only by resolution of a majority of the total number of authorized directors
whether or not there exist any vacancies in previously authorized directorships (the “Whole Board”); |
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provide
that all vacancies, including newly created directorships, may, except as otherwise required by law, be filled by the affirmative
vote of a majority of directors then in office, even if less than a quorum; |
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do
not provide for cumulative voting rights (therefore allowing the holders of a majority of the shares of common stock entitled to
vote in any election of directors to elect all of the directors standing for election, if they should so choose); |
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provide
that special meetings of our stockholders may be called only by a resolution adopted by a majority of the Whole Board; and |
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set
forth an advance notice procedure with regard to the nomination, other than by or at the direction of our board of directors, of
candidates for election as directors and with regard to business to be brought before a meeting of stockholders. |
DESCRIPTION
OF WARRANTS
As
of July 7, 2023, there were outstanding warrants to purchase 78,252 shares of common stock with a weighted average exercise price of
$58.10 per share.
We
may issue warrants for the purchase of common stock or preferred stock in one or more series. We may issue warrants independently or
together with common stock or preferred stock, and the warrants may be attached to or separate from these securities.
We
will evidence each series of warrants by warrant certificates that we may issue under a separate agreement. We may enter into a warrant
agreement with a warrant agent. Each warrant agent may be a bank that we select which has its principal office in the United States.
We may also choose to act as our own warrant agent. We will indicate the name and address of any such warrant agent in the applicable
prospectus supplement relating to a particular series of warrants.
We
will describe in the applicable prospectus supplement the terms of the series of warrants, including:
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the
offering price and aggregate number of warrants offered; |
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if
applicable, the designation and terms of the securities with which the warrants are issued and the number of warrants issued with
each such security or each principal amount of such security; |
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if
applicable, the date on and after which the warrants and the related securities will be separately transferable; |
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in
the case of warrants to purchase common stock or preferred stock, the number or amount of shares of common stock or preferred stock,
as the case may be, purchasable upon the exercise of one warrant and the price at which and currency in which these shares may be
purchased upon such exercise; |
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the
manner of exercise of the warrants, including any cashless exercise rights; |
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the
warrant agreement under which the warrants will be issued; |
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the
effect of any merger, consolidation, sale or other disposition of our business on the warrant agreement and the warrants; |
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anti-dilution
provisions of the warrants, if any; |
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the
terms of any rights to redeem or call the warrants; |
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any
provisions for changes to or adjustments in the exercise price or number of securities issuable upon exercise of the warrants; |
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the
dates on which the right to exercise the warrants will commence and expire or, if the warrants are not continuously exercisable during
that period, the specific date or dates on which the warrants will be exercisable; |
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the
manner in which the warrant agreement and warrants may be modified; |
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the
identities of the warrant agent and any calculation or other agent for the warrants; |
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federal
income tax consequences of holding or exercising the warrants; |
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the
terms of the securities issuable upon exercise of the warrants; |
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any
securities exchange or quotation system on which the warrants or any securities deliverable upon exercise of the warrants may be
listed or quoted; and |
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any
other specific terms, preferences, rights or limitations of or restrictions on the warrants. |
Before
exercising their warrants, holders of warrants will not have any of the rights of holders of the securities purchasable upon such exercise,
including, in the case of warrants to purchase common stock or preferred stock, the right to receive dividends, if any, or, payments
upon our liquidation, dissolution or winding up or to exercise voting rights, if any.
Exercise
of Warrants
Each
warrant will entitle the holder to purchase the securities that we specify in the applicable prospectus supplement at the exercise price
that we describe in the applicable prospectus supplement. Unless we otherwise specify in the applicable prospectus supplement, holders
of the warrants may exercise the warrants at any time up to 5:00 P.M. eastern time, the close of business, on the expiration date that
we set forth in the applicable prospectus supplement. After the close of business on the expiration date, unexercised warrants will become
void.
Holders
of the warrants may exercise the warrants by delivering the warrant certificate representing the warrants to be exercised together with
specified information, and paying the required exercise price by the methods provided in the applicable prospectus supplement. We will
set forth on the reverse side of the warrant certificate, and in the applicable prospectus supplement, the information that the holder
of the warrant will be required to deliver to the warrant agent.
Upon
receipt of the required payment and the warrant certificate properly completed and duly executed at the corporate trust office of the
warrant agent or any other office indicated in the applicable prospectus supplement, we will issue and deliver the securities purchasable
upon such exercise. If fewer than all of the warrants represented by the warrant certificate are exercised, then we will issue a new
warrant certificate for the remaining amount of warrants.
Enforceability
of Rights By Holders of Warrants
Any
warrant agent will act solely as our agent under the applicable warrant agreement and will not assume any obligation or relationship
of agency or trust with any holder of any warrant. A single bank or trust company may act as warrant agent for more than one issue of
warrants. A warrant agent will have no duty or responsibility in case of any default by us under the applicable warrant agreement or
warrant, including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder
of a warrant may, without the consent of the related warrant agent or the holder of any other warrant, enforce by appropriate legal action
the holder’s right to exercise, and receive the securities purchasable upon exercise of, its warrants in accordance with their
terms.
Warrant
Agreement Will Not Be Qualified Under Trust Indenture Act
No
warrant agreement will be qualified as an indenture, and no warrant agent will be required to qualify as a trustee, under the Trust Indenture
Act. Therefore, holders of warrants issued under a warrant agreement will not have the protection of the Trust Indenture Act with respect
to their warrants.
Governing
Law
Unless
we provide otherwise in the applicable prospectus supplement, each warrant agreement and any warrants issued under the warrant agreements
will be governed by New York law.
DESCRIPTION
OF UNITS
We
may issue units comprised of one or more of the other securities described in this prospectus or any prospectus supplement in any combination.
Each unit will be issued so that the holder of the unit is also the holder, with the rights and obligations of a holder, of each security
included in the unit. The unit agreement under which a unit is issued may provide that the securities included in the unit may not be
held or transferred separately, at any time or at any times before a specified date or upon the occurrence of a specified event or occurrence.
The
applicable prospectus supplement will describe:
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the
designation and the terms of the units and of the securities comprising the units, including whether and under what circumstances
those securities may be held or transferred separately; |
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any
unit agreement under which the units will be issued; |
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any
provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units; and |
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whether
the units will be issued in fully registered or global form. |
PLAN
OF DISTRIBUTION
We
may sell the securities offered pursuant to this prospectus from time to time in one or more transactions, including, without limitation:
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to
or through underwriters; |
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through
broker-dealers (acting as agent or principal); |
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through
agents; |
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directly
by us to one or more purchasers (including our affiliates and stockholders), through a specific bidding or auction process, a rights
offering or otherwise; |
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through
a combination of any such methods of sale; or |
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through
any other methods described in a prospectus supplement or free writing prospectus. |
The
distribution of securities may be effected, from time to time, in one or more transactions, including:
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block
transactions (which may involve crosses) and transactions on The Nasdaq Capital Market or any other organized market where the securities
may be traded; |
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purchases
by a broker-dealer as principal and resale by the broker-dealer for its own account pursuant to a prospectus supplement or free writing
prospectus; |
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ordinary
brokerage transactions and transactions in which a broker-dealer solicits purchasers; |
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sales
“at the market” to or through a market maker or into an existing trading market, on an exchange or otherwise; and |
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sales
in other ways not involving market makers or established trading markets, including direct sales to purchasers. |
The
applicable prospectus supplement or free writing prospectus will describe the terms of the offering of the securities, including:
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the
name or names of any underwriters, if, and if required, any dealers or agents; |
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the
purchase price of the securities and the proceeds we will receive from the sale; |
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any
underwriting discounts and other items constituting underwriters’ compensation; |
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any
discounts or concessions allowed or re-allowed or paid to dealers; and |
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any
securities exchange or market on which the securities may be listed or traded. |
We
may distribute the securities from time to time in one or more transactions at:
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a
fixed price or prices, which may be changed; |
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market
prices prevailing at the time of sale; |
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prices
related to such prevailing market prices; or |
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negotiated
prices. |
Only
underwriters named in the prospectus supplement are underwriters of the securities offered by the prospectus supplement.
If
underwriters are used in an offering, we will execute an underwriting agreement with such underwriters and will specify the name of each
underwriter and the terms of the transaction (including any underwriting discounts and other terms constituting compensation of the underwriters
and any dealers) in a prospectus supplement. The securities may be offered to the public either through underwriting syndicates represented
by managing underwriters or directly by one or more investment banking firms or others, as designated. If an underwriting syndicate is
used, the managing underwriter(s) will be specified on the cover of the prospectus supplement. If underwriters are used in the sale,
the offered securities will be acquired by the underwriters for their own accounts and may be resold from time to time in one or more
transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale.
Any public offering price and any discounts or concessions allowed or reallowed or paid to dealers may be changed from time to time.
Unless otherwise set forth in the prospectus supplement, the obligations of the underwriters to purchase the offered securities will
be subject to conditions precedent, and the underwriters will be obligated to purchase all of the offered securities, if any are purchased.
We
may grant to the underwriters options to purchase additional securities to cover over-allotments, if any, at the public offering price,
with additional underwriting commissions or discounts, as may be set forth in a related prospectus supplement. The terms of any over-allotment
option will be set forth in the prospectus supplement for those securities.
If
we use a dealer in the sale of the securities being offered pursuant to this prospectus or any prospectus supplement, we will sell the
securities to the dealer, as principal. The dealer may then resell the securities to the public at varying prices to be determined by
the dealer at the time of resale. The names of the dealers and the terms of the transaction will be specified in a prospectus supplement.
We
may sell the securities directly or through agents we designate from time to time. We will name any agent involved in the offering and
sale of securities and we will describe any commissions we will pay the agent in the prospectus supplement. Unless the prospectus supplement
states otherwise, any agent will act on a best-efforts basis for the period of its appointment.
We
may authorize agents or underwriters to solicit offers by institutional investors to purchase securities from us at the public offering
price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified
date in the future. We will describe the conditions to these contracts and the commissions we must pay for solicitation of these contracts
in the prospectus supplement.
In
connection with the sale of the securities, underwriters, dealers or agents may receive compensation from us or from purchasers of the
securities for whom they act as agents, in the form of discounts, concessions or commissions. Underwriters may sell the securities to
or through dealers, and those dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters
or commissions from the purchasers for whom they may act as agents. Underwriters, dealers and agents that participate in the distribution
of the securities, and any institutional investors or others that purchase securities directly for the purpose of resale or distribution,
may be deemed to be underwriters, and any discounts or commissions received by them from us and any profit on the resale of the common
stock by them may be deemed to be underwriting discounts and commissions under the Securities Act of 1933, as amended.
We
may provide agents, underwriters and other purchasers with indemnification against particular civil liabilities, including liabilities
under the Securities Act of 1933, as amended, or contribution with respect to payments that the agents, underwriters or other purchasers
may make with respect to such liabilities. Agents and underwriters may engage in transactions with, or perform services for, us in the
ordinary course of business.
To
facilitate the public offering of a series of securities, persons participating in the offering may engage in transactions that stabilize,
maintain, or otherwise affect the market price of the securities. This may include over-allotments or short sales of the securities,
which involves the sale by persons participating in the offering of more securities than have been sold to them by us. In addition, those
persons may stabilize or maintain the price of the securities by bidding for or purchasing securities in the open market or by imposing
penalty bids, whereby selling concessions allowed to underwriters or dealers participating in any such offering may be reclaimed if securities
sold by them are repurchased in connection with stabilization transactions. The effect of these transactions may be to stabilize or maintain
the market price of the securities at a level above that which might otherwise prevail in the open market. Such transactions, if commenced,
may be discontinued at any time. We make no representation or prediction as to the direction or magnitude of any effect that the transactions
described above, if implemented, may have on the price of our securities.
Unless
otherwise specified in the applicable prospectus supplement, any common stock sold pursuant to a prospectus supplement will be eligible
for listing on the Nasdaq Capital Market, subject to official notice of issuance. Any underwriters to whom securities are sold by us
for public offering and sale may make a market in the securities, but such underwriters will not be obligated to do so and may discontinue
any market making at any time without notice.
In
order to comply with the securities laws of some states, if applicable, the securities offered pursuant to this prospectus will be sold
in those states only through registered or licensed brokers or dealers. In addition, in some states securities may not be sold unless
they have been registered or qualified for sale in the applicable state or an exemption from the registration or qualification requirement
is available and complied with.
LEGAL
MATTERS
The
validity of the securities offered by this prospectus will be passed upon by Haynes and Boone, LLP, New York, New York.
EXPERTS
The
consolidated financial statements of the Company and its subsidiary as of December 31, 2022, and December 31, 2021, and for each of the
two years in the period ended December 31, 2022, included in the Annual Report on Form 10-K for the year ended December 31, 2022, and
incorporated in this prospectus by reference, have been so incorporated in reliance on the report (which contains an explanatory paragraph
relating to the Company’s ability to continue as a going concern as described in Note 2 to the financial statements) of Marcum
LLP, an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.
WHERE
YOU CAN FIND MORE INFORMATION
We
are subject to the informational requirements of the Securities Exchange Act of 1934, as amended, and in accordance therewith file annual,
quarterly and current reports, proxy statements and other information with the Securities and Exchange Commission. The Securities and
Exchange Commission maintains a website that contains reports, proxy and information statements and other information regarding registrants
that file electronically with the Securities and Exchange Commission. The address of the Securities and Exchange Commission’s website
is www.sec.gov.
We
make available free of charge on or through our website at www.nanovibronix.com, our Annual Reports on Form 10-K, Quarterly Reports on
Form 10-Q, Current Reports on Form 8-K and amendments to those reports filed or furnished pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934, as amended, as soon as reasonably practicable after we electronically file such material with or otherwise furnish
it to the Securities and Exchange Commission.
We
have filed with the Securities and Exchange Commission a registration statement under the Securities Act of 1933, as amended, relating
to the offering of these securities. The registration statement, including the attached exhibits, contains additional relevant information
about us and the securities. This prospectus does not contain all of the information set forth in the registration statement. You can
obtain a copy of the registration statement for free at www.sec.gov. The registration statement and the documents referred to below under
“Incorporation of Certain Information By Reference” are also available on our website, www.nanovibronix.com.
We
have not incorporated by reference into this prospectus the information on our website, and you should not consider it to be a part of
this prospectus.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The
Securities and Exchange Commission allows us to “incorporate by reference” the information we have filed with it, which means
that we can disclose important information to you by referring you to those documents. The information we incorporate by reference is
an important part of this prospectus, and later information that we file with the Securities and Exchange Commission will automatically
update and supersede this information. We incorporate by reference the documents listed below and any future documents (excluding information
furnished pursuant to Items 2.02 and 7.01 of Form 8-K) we file with the Securities and Exchange Commission pursuant to Sections l3(a),
l3(c), 14 or l5(d) of the Securities Exchange Act of 1934, as amended, subsequent to the date of this prospectus and prior to the termination
of the offering:
|
● |
Our
Annual Report on Form 10-K for the fiscal year ended December 31, 2022, filed with the Securities and Exchange Commission on April
17, 2023; |
|
|
|
|
● |
Our
definitive Proxy Statement on Schedule 14A, filed with the Securities and Exchange Commission on May 1, 2023; |
|
● |
Our
Quarterly Report on Form 10-Q for the quarter ended March 31, 2023, filed with the Securities and Exchange Commission on May 15,
2023; |
|
|
|
|
● |
Our
Current Report on Form 8-K, filed with the Securities and Exchange Commission on February 8, 2023; |
|
● |
Our Current Report on Form 8-K, filed with the Securities
and Exchange Commission on March 3, 2023; |
|
|
|
|
|
Our Current Report on Form 8-K, filed with the Securities
and Exchange Commission on April 19, 2023; |
|
|
|
|
● |
Our
Current Report on Form 8-K, filed with the Securities and Exchange Commission on May 25, 2023; |
|
|
|
|
● |
Our Current Report on Form 8-K, filed with the Securities
and Exchange Commission on June 21, 2023; |
|
|
|
|
● |
Our Current Report on Form 8-K, filed with the Securities
and Exchange Commission on July 20, 2023; |
|
|
|
|
● |
The description of our common stock contained in our
Registration Statement on Form 8-A, filed on October 19, 2017 pursuant to Section 12(b) of the Exchange Act, which incorporates by
reference the description of the shares of our common stock contained in the “Description of Securities” filed as Exhibit 4.15 to our Annual Report on Form 10-K for the year ended December 31, 2022, filed with the Securities and Exchange Commission on
April 17, 2023, and any amendment or report filed with the Securities and Exchange Commission for purposes of updating such description.
|
All
filings filed by us pursuant to the Securities Exchange Act of 1934, as amended, after the date of the initial filing of this registration
statement and prior to the effectiveness of such registration statement (excluding information furnished pursuant to Items 2.02 and 7.01
of Form 8-K) shall also be deemed to be incorporated by reference into the prospectus.
You
should rely only on the information incorporated by reference or provided in this prospectus. We have not authorized anyone else to provide
you with different information. Any statement contained in a document incorporated by reference into this prospectus will be deemed to
be modified or superseded for the purposes of this prospectus to the extent that a later statement contained in this prospectus or in
any other document incorporated by reference into this prospectus modifies or supersedes the earlier statement. Any statement so modified
or superseded will not be deemed, except as so modified or superseded, to constitute a part of this prospectus. You should not assume
that the information in this prospectus is accurate as of any date other than the date of this prospectus or the date of the documents
incorporated by reference in this prospectus.
We
will provide without charge to each person to whom a copy of this prospectus is delivered, upon written or oral request, a copy of any
or all of the reports or documents that have been incorporated by reference in this prospectus but not delivered with this prospectus
(other than an exhibit to these filings, unless we have specifically incorporated that exhibit by reference in this prospectus). Any
such request should be addressed to us at: 525 Executive Boulevard, Elmsford, New York 10523, Attention: Stephen Brown, Chief Financial
Officer, or made by phone at (914) 233-3004. You may also access the documents incorporated by reference in this prospectus through our
website at www.nanovibronix.com. Except for the specific incorporated documents listed above, no information available on or through
our website shall be deemed to be incorporated in this prospectus or the registration statement of which it forms a part.
$50,000,000
![](https://www.sec.gov/Archives/edgar/data/1326706/000149315223026278/forms-3_001.jpg)
COMMON
STOCK
PREFERRED
STOCK
WARRANTS
UNITS
PROSPECTUS
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. |
Other
Expenses of Issuance and Distribution. |
The
fees and expenses payable by us in connection with this registration statement are estimated as follows:
Securities
and Exchange Commission Registration Fee | |
$ | 836.79 | |
Accounting Fees and Expenses | |
| 15,000 | |
Legal Fees and Expenses | |
| 20,000 | |
Printing Fees and Expenses | |
| — | |
Transfer Agent Fees and
Expenses | |
| 3,000 | |
Miscellaneous
Fees and Expenses | |
| 5,000 | |
Total | |
$ | 43,836.79 | |
Item
15. |
Indemnification
of Directors and Officers. |
Section
145 of the General Corporation Law of the State of Delaware provides, in general, that a corporation incorporated under the laws of the
State of Delaware, as we are, may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding (other than a derivative action by or in the right of the corporation) by reason of the fact
that such person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another enterprise, against expenses (including attorneys’ fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding if
such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the
corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe such person’s conduct was
unlawful. In the case of a derivative action, a Delaware corporation may indemnify any such person against expenses (including attorneys’
fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit if such person
acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation,
except that no indemnification will be made in respect of any claim, issue or matter as to which such person will have been adjudged
to be liable to the corporation unless and only to the extent that the Court of Chancery of the State of Delaware or any other court
in which such action was brought determines such person is fairly and reasonably entitled to indemnity for such expenses.
Our
certificate of incorporation and bylaws provide that we will indemnify our directors, officers, employees and agents to the extent and
in the manner permitted by the provisions of the General Corporation Law of the State of Delaware, as amended from time to time, subject
to any permissible expansion or limitation of such indemnification, as may be set forth in any stockholders’ or directors’
resolution or by contract. Any repeal or modification of these provisions approved by our stockholders will be prospective only and will
not adversely affect any limitation on the liability of any of our directors or officers existing as of the time of such repeal or modification.
We
are also permitted to apply for insurance on behalf of any director, officer, employee or other agent for liability arising out of his
actions, whether or not the General Corporation Law of the State of Delaware would permit indemnification.
Exhibit
No. |
|
Description |
1.1* |
|
Form
of Underwriting Agreement |
|
|
|
3.1 |
|
Amended and Restated Certificate of Incorporation (as presently in effect) (incorporated by reference to Exhibit 3.1 to the Current Report on Form 8-K filed with the Securities and Exchange Commission on April 17, 2015) |
|
|
|
3.2 |
|
Certificate of Amendment of Certificate of Incorporation (creating the Series C Preferred Stock) (incorporated by reference to Exhibit 3.3 to Amendment No. 3 to the Registration Statement on Form S-1 filed with the Securities and Exchange Commission on April 30, 2014) |
|
|
|
3.3 |
|
Certificate of Designation of Preferences, Rights and Limitations of Series D Convertible Preferred Stock (incorporated by reference to Exhibit 3.1 to the Current Report on Form 8-K filed with the Securities and Exchange Commission on November 7, 2017) |
|
|
|
3.4 |
|
Amended and Restated Certificate of Designation of Series E Convertible Preferred Stock (incorporated by reference to Exhibit 4.1 to the Form 10-Q filed with the Securities and Exchange Commission on November 19, 2019). |
|
|
|
3.5 |
|
Certificate of Amendment of the Amended and Restated Certificate of Incorporation (incorporated herein by reference to Exhibit 3.1 to the Current Report on Form 8-K filed with the Securities and Exchange Commission on November 21, 2019) |
|
|
|
3.6 |
|
Certificate of Amendment of Certificate of Incorporation (incorporated by reference to Exhibit 3.7 to the Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on November 15, 2021) |
|
|
|
3.7 |
|
Certificate of Designation, Preferences, Rights and Limitations of Series F Preferred Stock (incorporated by reference to Exhibit 3.1 to the Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on November 14, 2022) |
|
|
|
3.8 |
|
Certificate of Amendment of Certificate of Incorporation (incorporated by reference to Exhibit 3.1 to the Current Report filed with the Securities and Exchange Commission on February 8, 2023) |
|
|
|
3.9 |
|
Amended and Restated Bylaws (incorporated by reference to Exhibit 3.2 to Amendment No. 3 to the Registration Statement on Form S-1 filed with the Securities and Exchange Commission on April 30, 2014) |
|
|
|
3.10 |
|
Amendment to the Amended and Restated Bylaws (incorporated by reference to Exhibit 3.1 to the Current Report on Form 8-K filed on November 3, 2021) |
|
|
|
3.11* |
|
Certificate
of Designation of Preferred Stock |
|
|
|
4.1 |
|
Form of Common Stock Certificate (incorporated by reference to Exhibit 4.2 to Amendment No. 1 to Registration Statement on Form S-1 filed with the Securities and Exchange Commission on March 6, 2014) |
|
|
|
4.2 |
|
Form of May 10 and May 15, 2019 Warrants (incorporated by reference to Exhibit 4.1 to the Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on May 20, 2019) |
|
|
|
4.3 |
|
Form of Warrant (incorporated by reference to Exhibit 4.2 to the Current Report on Form 8-K filed with the Securities and Exchange Commission on June 26, 2019). |
|
|
|
4.4 |
|
Form of Preferred Warrant (incorporated by reference to Exhibit 4.2 to the Current Report on Form 8-K filed with the Securities and Exchange Commission on July 31, 2019). |
4.5 |
|
Form of Common Warrant (incorporated by reference to Exhibit 4.3 to the Current Report on Form 8-K filed on July 31, 2019) |
|
|
|
4.6 |
|
Form of Warrant Amendment, dated January 29, 2019 (incorporated by reference to Exhibit 4.10 to the Annual Report on Form 10-K filed on May 20, 2020) |
|
|
|
4.7 |
|
Form of Underwriter Common Stock Purchase Warrant (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K filed with the Securities and Exchange Commission on August 26, 2020) |
|
|
|
4.8
|
|
Form of Underwriter Common Stock Purchase Warrant (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K filed with the Securities and Exchange Commission on September 24, 2020) |
|
|
|
4.9 |
|
Form of Pre-Funded Warrant (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K filed with the Securities and Exchange Commission on December 7, 2020) |
|
|
|
4.10 |
|
Form of Placement Agent Warrant (incorporated by reference to Exhibit 4.2 to the Current Report on Form 8-K filed with the Securities and Exchange Commission on December 7, 2020) |
|
|
|
4.11 |
|
Form of Placement Agent Warrant (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K filed with the Securities and Exchange Commission on December 1, 2022) |
|
|
|
4.12* |
|
Form
of Warrant Agreement and Warrant Certificate |
|
|
|
4.13* |
|
Form
of Unit Agreement |
|
|
|
5.1** |
|
Opinion of Haynes and Boone, LLP |
|
|
|
23.1**
|
|
Consent of Marcum LLP, Independent Registered Public Accounting Firm |
|
|
|
23.2**
|
|
Consent of Haynes and Boone, LLP (included in Exhibit 5.1) |
|
|
|
24.1 |
|
Power of Attorney (included in the signature page) |
|
|
|
107** |
|
Filing Fee Table |
*
To be filed as an exhibit to a Current Report of the registrant on Form 8-K or other document to be incorporated herein by reference.
**
Filed herewith.
The
undersigned registrant hereby undertakes:
|
(a)
(1) |
To
file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
|
(i) |
To
include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; |
|
|
|
|
(ii) |
To
reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if
the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end
of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price
set forth in the “Calculation of Registration Fee” table in the effective registration statement; |
|
|
|
|
(iii) |
To
include any material information with respect to the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement; |
provided,
however, that the undertakings set forth in paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) above do not apply if the information
required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission
by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in
the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
|
(2) |
That,
for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof. |
|
|
|
|
(3) |
To
remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering. |
|
|
|
|
(4) |
That,
for the purpose of determining liability under the Securities Act of 1933 to any purchaser: |
|
(i) |
If
the registrant is relying on Rule 430B (§230.430B of this chapter): |
|
(A) |
Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the registration statement; and |
|
|
|
|
(B) |
Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information
required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement
as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale
of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any
person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating
to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference
into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract
of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus
that was part of the registration statement or made in any such document immediately prior to such effective date. |
|
(ii) |
If
the registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating
to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A,
shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided,
however, that no statement made in a registration statement or prospectus that is part of the registration statement or made
in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement
that was made in the registration statement or prospectus that was part of the registration statement or made in any such document
immediately prior to such date of first use. |
|
(5) |
That,
for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution
of the securities: The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant
to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities
are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller
to the purchaser and will be considered to offer or sell such securities to such purchaser: |
|
(i) |
Any
preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule
424; |
|
(ii) |
Any
free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by
the undersigned registrant; |
|
(iii) |
The
portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant; and |
|
(iv) |
Any
other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
(b)
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing
of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c)
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication
of such issue.
(d)
The undersigned registrant hereby undertakes that:
|
(1) |
For
purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed
as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant
to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time
it was declared effective. |
|
|
|
|
(2) |
For
the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering thereof. |
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Elmsford, State of New York, on August 1, 2023.
|
NANOVIBRONIX,
INC. |
|
|
|
|
By: |
/s/
Brian Murphy |
|
Name: |
Brian
Murphy |
|
Title: |
Chief
Executive Officer |
Power
of Attorney
Each
person whose signature appears below hereby appoints each of Brian Murphy and Stephen Brown, severally, acting alone and without the
other, his or her true and lawful attorney-in-fact, with full power of substitution, and with the authority to execute in the name of
each such person, any and all amendments (including without limitation, post-effective amendments) to this registration statement on
Form S-3, to sign any and all additional registration statements relating to the same offering of securities as this registration statement
that are filed pursuant to Rule 462(b) of the Securities Act of 1933, and to file such registration statements with the Securities and
Exchange Commission, together with any exhibits thereto and other documents therewith, necessary or advisable to enable the registrant
to comply with the Securities Act of 1933, and any rules, regulations and requirements of the Securities and Exchange Commission in respect
thereof, which amendments may make such other changes in the registration statement as the aforesaid attorney-in-fact executing the same
deems appropriate.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities
and on the dates indicated.
Signature |
|
Title |
|
Date |
|
|
|
|
|
/s/
Brian Murphy |
|
Chief
Executive Officer and Director |
|
August
1, 2023 |
Brian
Murphy |
|
(principal
executive officer) |
|
|
|
|
|
|
|
/s/
Stephen Brown |
|
Chief
Financial Officer |
|
August
1, 2023 |
Stephen
Brown |
|
(principal
financial and accounting officer) |
|
|
|
|
|
|
|
/s/
Christopher Fashek |
|
Chairman
of the Board of Directors |
|
August
1, 2023 |
Christopher
Fashek |
|
|
|
|
|
|
|
|
|
/s/
Martin Goldstein |
|
Director |
|
August
1, 2023 |
Martin
Goldstein |
|
|
|
|
|
|
|
|
|
/s/
Harold Jacob, M.D. |
|
Director |
|
August
1, 2023 |
Harold
Jacob, M.D. |
|
|
|
|
|
|
|
|
|
/s/
Michael Ferguson |
|
Director |
|
August
1, 2023 |
Michael
Ferguson |
|
|
|
|
|
|
|
|
|
/s/
Thomas R. Mika |
|
Director |
|
August
1, 2023 |
Thomas
R. Mika |
|
|
|
|
|
|
|
|
|
/s/
Aurora Cassirer |
|
Director
|
|
August
1, 2023 |
Aurora Cassirer |
|
|
|
|
|
|
|
|
|
/s/
Maria Schroeder |
|
Director
|
|
August
1, 2023 |
Maria Schroeder |
|
|
|
|
Exhibit
5.1
![](https://www.sec.gov/Archives/edgar/data/1326706/000149315223026278/ex5-1_001.jpg)
August
1, 2023
NanoVibronix,
Inc.
525
Executive Blvd.
Elmsford,
New York, 10523
Ladies
and Gentlemen:
We
have acted as counsel for NanoVibronix, Inc., a Delaware corporation (the “Company”), in connection with the
filing with the Securities and Exchange Commission (the “Commission”) on the date hereof, under the Securities
Act of 1933, as amended (the “Act”) of a registration statement on Form S-3 (the “Registration
Statement”) by the Company relating to (i) shares of common stock, $0.001 par value per share, of the Company (the “Common
Stock”), (ii) preferred stock, $0.001 par value per share, of the Company (the “Preferred Stock”),
(iii) warrants to purchase Common Stock or Preferred Stock (the “Warrants”), and (iv) units comprised of one
or more shares of Common Stock, Preferred Stock or Warrants in any combination (the “Units” and, together with
the Common Stock, the Preferred Stock and the Warrants, the “Securities” and individually a “Security”)
that may be issued and sold from time to time pursuant to Rule 415 under the Act for an aggregate initial offering price not to exceed
$50,000,000.
For
purposes of the opinions we express below, we have examined originals, or copies certified or otherwise identified, of (i) the Amended
and Restated Certificate of Incorporation and Amended and Restated Bylaws, each as amended and/or restated as of the date hereof (the
“Charter Documents”); (ii) the base prospectus for the offer and sale of the Securities (as may be amended
or supplemented, the “Base Prospectus”); (iii) certain resolutions of the board of directors of the Company
related to the filing of the Registration Statement and the Base Prospectus, the authorization and issuance of the Securities and related
matters; (iv) the Registration Statement and all exhibits thereto; (v) the specimen Common Stock certificate of the Company; (vi) a certificate
executed by an officer of the Company, dated as of the date hereof; and (vii) such other records, documents and instruments as we have
deemed necessary or appropriate for purposes of the opinions hereafter expressed.
As
to questions of fact material to the opinions expressed below, we have, without independent verification of their accuracy, relied to
the extent we deem reasonably appropriate upon the representations and warranties of the Company contained in such documents, records,
certificates, instruments or representations furnished or made available to us by the Company.
In
making the foregoing examination, we have assumed (i) the genuineness of all signatures, (ii) the authenticity of all documents submitted
to us as originals, (iii) the conformity to original documents of all documents submitted to us as certified or photostatic copies, (iv)
that all agreements or instruments we have examined are the valid, binding and enforceable obligations of the parties thereto, and (v)
that all factual information on which we have relied was accurate and complete.
Haynes
and Boone, LLP
|
30
Rockefeller Plaza | 26th Floor | New York, NY 10112
T:
212.659.7300 | haynesboone.com
|
![](https://www.sec.gov/Archives/edgar/data/1326706/000149315223026278/ex5-1_001.jpg)
We
have also assumed that (i) the Company will continue to be incorporated and in existence and good standing in its jurisdiction of organization,
(ii) the Registration Statement, and any amendments thereto (including post-effective amendments), will have become effective; (iii)
no stop order of the Commission preventing or suspending the use of the Base Prospectus contained in the Registration Statement or any
prospectus supplement will have been issued; (iv) a prospectus supplement will have been prepared and filed with the Commission properly
describing the Securities offered thereby and will have been delivered to the purchaser(s) of the Securities as required in accordance
with applicable law; (v) all Securities will be offered, issued and sold in compliance with applicable federal and state securities laws
and in the manner stated in the Registration Statement and the appropriate prospectus supplement; (vi) a definitive purchase, underwriting
or similar agreement with respect to any Securities offered will have been duly authorized and validly executed and delivered by the
Company and the other parties thereto and will be an enforceable obligation of the parties thereto; (vii) in connection with the sale
of Warrants, any required warrant agreement or agreement relating to the Warrants (a “Warrant Agreement”) will
have been executed and delivered by all applicable parties and will be enforceable in all respects in accordance with its terms; (viii)
in connection with the sale of any Units, any required unit agreement relating to the Units (a “Unit Agreement”)
will have been executed and delivered by all applicable parties and will be enforceable in all respects in accordance with its terms;
(ix) any securities issuable upon conversion, exchange, redemption or exercise of any Securities being offered will be duly and validly
authorized, created and, if appropriate, reserved for issuance upon such conversion, exchange, redemption or exercise; and (x) with respect
to shares of Common Stock or Preferred Stock offered or underlying the Securities offered, there will be sufficient shares of Common
Stock or Preferred Stock authorized under the Charter Documents and not otherwise reserved for issuance.
Based
on the foregoing, and subject to the limitations and qualifications set forth herein, we are of the opinion that:
| 1. | With
respect to shares of Common Stock, when (i) the board of directors of the Company or, to
the extent permitted by the General Corporation Law of the State of Delaware and the Charter
Documents, a duly constituted and acting committee thereof (such board of directors or committee
being hereinafter referred to as the “Company Board”) has taken
all necessary corporate action to approve the issuance thereof and the terms of the offering
of shares of Common Stock and related matters, and (ii) certificates representing the shares
of Common Stock have been duly executed, countersigned, registered and delivered, or if uncertificated,
valid book-entry notations have been made in the share register of the Company, in each case
in accordance with the provisions of the Charter Documents, either (a) in accordance with
the applicable definitive purchase, underwriting or similar agreement approved by the Company
Board and upon payment of the consideration therefor (which shall not be less than the par
value of the Common Stock) provided for therein, all in accordance with the Registration
Statement and any applicable prospectus supplement, or (b) upon conversion, exchange, redemption
or exercise of any other Security, in accordance with the terms of such Security or the instrument
governing such Security providing for such conversion, exchange, redemption or exercise as
approved by the Company Board, and for the consideration approved by the Company Board (which
shall not be less than the par value of the Common Stock), all in accordance with the Registration
Statement and any applicable prospectus supplement, the shares of Common Stock will be validly
issued, fully paid and non-assessable. The Common Stock covered in the opinion in this paragraph
includes any shares of Common Stock that may be issued upon exercise, conversion or exchange
pursuant to the terms of any other Securities. |
| 2. | With
respect to shares of Preferred Stock, when (i) the Company Board has taken all necessary
corporate action to approve and establish the terms of the shares of Preferred Stock, to
approve the issuance thereof and the terms of the offering thereof and related matters, including
the adoption of a Certificate of Designations relating to such Preferred Stock (a “Certificate
of Designations”), and such Certificate of Designations has been filed with
the Secretary of State of the State of Delaware, and (ii) certificates representing the shares
of Preferred Stock have been duly executed, countersigned, registered and delivered, or if
uncertificated, valid book-entry notations have been made in the share register of the Company,
in each case in accordance with the provisions of the Charter Documents, either (a) in accordance
with the applicable definitive purchase, underwriting or similar agreement approved by the
Company Board and upon payment of the consideration therefor (which shall not be less than
the par value of the Preferred Stock) provided for therein, all in accordance with the Registration
Statement and any applicable prospectus supplement, or (b) upon conversion, exchange, redemption
or exercise of any other Security, in accordance with the terms of such Security or the instrument
governing such Security providing for such conversion, exchange, redemption or exercise as
approved by the Company Board, and for the consideration approved by the Company Board (which
shall not be less than the par value of the Preferred Stock), all in accordance with the
Registration Statement and any applicable prospectus supplement, the shares of Preferred
Stock will be validly issued, fully paid and non-assessable. |
![](https://www.sec.gov/Archives/edgar/data/1326706/000149315223026278/ex5-1_001.jpg)
| 3. | With
respect to the Warrants, when (i) the Company Board has taken all necessary corporate action
to approve the creation of and the issuance and terms of the Warrants, the terms of the offering
thereof and related matters, (ii) the Warrant Agreements and Warrants have been duly prepared,
authorized and validly executed and delivered by the Company and the other parties thereto
(if any) in compliance with all applicable laws, and (iii) the Warrants or certificates representing
the Warrants have been duly registered and delivered in accordance with the appropriate Warrant
Agreements and the applicable definitive purchase, underwriting or similar agreement approved
by the Company Board and upon payment of the consideration therefor provided for therein
(which shall not be less than the par value of any Common Stock or Preferred Stock underlying
such Warrants), all in accordance with the Registration Statement and any prospectus supplement,
the Warrants will constitute valid and legally binding obligations of the Company. |
| 4. | With
respect to Units, when (i) the Company Board has taken all necessary corporate action to
approve the creation of and the issuance and terms of the Units, the terms of the offering
thereof and related matters, (ii) the Unit Agreements and Units have been duly prepared,
authorized and validly executed and delivered by the Company and the other parties thereto
(if any) in compliance with all applicable laws, and (iii) the Units or certificates representing
the Units have been duly registered and delivered in accordance with the appropriate Unit
Agreements and the applicable definitive purchase, underwriting or similar agreement approved
by the Company Board and upon payment of the consideration therefor provided for therein
(which shall not be less than the par value of any Common Stock or Preferred Stock underlying
such Units), all in accordance with the Registration Statement and any prospectus supplement,
the Units will constitute valid and legally binding obligations of the Company. |
The
opinions set forth above are subject to the following qualifications, limitations and exceptions:
(a)
The opinions are subject to (i) the effect of any applicable bankruptcy, insolvency, reorganization, moratorium, rearrangement, liquidation,
conservatorship or other similar laws now or hereafter in effect relating to or affecting the rights of creditors generally, (ii) provisions
of applicable law pertaining to the voidability of preferential or fraudulent transfers and conveyances and (iii) the fact that the remedy
of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion
of the court before which any proceeding therefor may be brought.
(b)
The opinions are subject to the effect of (i) general principles of equity, including (without limitation) concepts of materiality, reasonableness,
good faith and fair dealing, general matters of public policy and other similar doctrines generally affecting the enforceability of agreements
(regardless of whether considered in a proceeding in equity or at law) (ii) obligations of good faith and fair dealing under New York
law, and (iii) other commonly-recognized statutory and judicial constraints on enforceability, including statutes of limitation, limitations
on rights to indemnification that contravene law or public policy and the effectiveness of waivers of rights or benefits that cannot
be effectively waived under applicable law.
![](https://www.sec.gov/Archives/edgar/data/1326706/000149315223026278/ex5-1_001.jpg)
(c)
In rendering the opinions, we have assumed that, at the time of the sale of the Securities, (i) the resolutions of the Company Board
or similar governing body, as reflected in the minutes and proceedings of the Company, will not have been modified or rescinded and (ii)
there will not have occurred any change in the laws affecting the authorization, execution, delivery, issuance, sale, ranking, validity
or enforceability of the Securities, (iii) all third party consents required in connection with the sale of the Securities will have
been received by the Company, (iv) the Registration Statement will have been declared effective by the Commission and will continue to
be effective, (v) none of the particular terms of a series of Securities will violate any applicable law or the terms of any applicable
governing documents and (vi) neither the issuance and sale thereof nor the compliance by the Company with the terms thereof will result
in a violation of any agreement or instrument then binding upon the Company or any order of any court or governmental body having jurisdiction
over the Company.
The
opinions expressed herein are limited to the federal laws of the United States of America, and, to the extent relevant to the opinions
expressed herein, (i) the Delaware General Corporation Law and (ii) the laws of the State of New York, in each case as in effect on the
date hereof (all of the foregoing being referred to as the “Opined on Law”). We do not express any opinion
with respect to any other laws, or the laws of any other jurisdiction (including, without limitation, any laws of any other jurisdiction
which might be referenced by the choice-of-law rules of the Opined on Law), other than the Opined on Law or as to the effect of any such
other laws on the opinions herein stated.
We
hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement and to the reference to our firm contained
therein under the heading “Legal Matters.” In giving this consent, we do not hereby admit we are in the category of persons
whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder. This opinion is given
as of the date hereof and we assume no obligation to update or supplement such opinion after the date hereof to reflect any facts or
circumstances that may thereafter come to our attention or any changes that may thereafter occur.
|
Very
truly yours, |
|
|
|
/s/
Haynes and Boone, LLP |
|
|
|
Haynes
and Boone, LLP |
Exhibit
23.1
Independent
Registered Public Accounting Firm’s Consent
We
consent to the incorporation by reference in this Registration Statement of NanoVibronix, Inc. on Form S-3 of our report dated April
17, 2023, which includes an explanatory paragraph as to the Company’s ability to continue as a going concern, with respect to our
audits of the consolidated financial statements of NanoVibronix, Inc. as of December 31, 2022 and 2021 and for each of the two years
in the period ended December 31, 2022 appearing in the Annual Report on Form 10-K of NanoVibronix, Inc. for the year ended December 31,
2022. We also consent to the reference to our firm under the heading “Experts” in the Prospectus, which is part of this Registration
Statement.
/s/
Marcum llp
Marcum
llp
New
York, NY
August
1, 2023
Exhibit
107
Calculation
of Filing Fee Tables
Form
S-3
(Form
Type)
NanoVibronix,
Inc.
(Exact
Name of Registrant as Specified in its Charter)
Table
1: Newly Registered and Carry Forward Securities
|
|
Security
Type |
|
Security
Class
Title |
|
Fee
Calculation
or
Carry
Forward
Rule |
|
|
Amount
Registered |
|
|
Proposed
Maximum
Offering
Price
Per
Unit |
|
|
Maximum
Aggregate
Offering
Price |
|
|
Fee
Rate |
|
|
Amount
of
Registration
Fee |
|
|
Carry
Forward
Form
Type |
|
|
Carry
Forward
File
Number |
|
|
Carry
Forward
Initial
Effective
Date |
|
|
Filing
Fee
Previously
Paid
In
Connection
With
Unsold
Securities
to
be
Carried
Forward |
|
Newly
Registered Securities |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fees
to be Paid |
|
Equity |
|
Common
Stock, $0.001 par value per share |
|
|
|
|
|
|
(2)(3) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fees
to be Paid |
|
Equity |
|
Preferred
Stock, $0.001 par value per share |
|
|
|
|
|
|
(2)(3) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fees
to be Paid |
|
Other |
|
Warrants |
|
|
|
|
|
|
(2)(3) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fees
to be Paid |
|
Other |
|
Units |
|
|
|
|
|
|
(2)(3) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fees
to be Paid |
|
Unallocated
(Universal) Shelf |
|
Unallocated
(Universal) Shelf |
|
|
457(o) |
|
|
|
(2)(3) |
|
|
|
|
|
|
$ |
7,593,358.50 |
|
|
$ |
0.00011020 |
|
|
$ |
836.79
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fees
Previously Paid |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Carry
Forward Securities |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Carry
Forward Securities |
|
Equity |
|
Common
Stock, $0.001 par value per share |
|
|
415(a)(6) |
|
|
|
(1)(2)(3) |
|
|
|
|
|
|
|
(1)(3) |
|
|
|
|
|
|
|
(1) |
|
|
|
S-3
|
|
|
|
333-
239965 |
|
|
|
August
11, 2020 |
|
|
|
(1) |
|
Carry
Forward Securities |
|
Equity |
|
Preferred
Stock, $0.001 par value per share |
|
|
415(a)(6) |
|
|
|
(1)(2)(3) |
|
|
|
|
|
|
|
(1)(3) |
|
|
|
|
|
|
|
(1) |
|
|
|
S-3
|
|
|
|
333-
239965 |
|
|
|
August
11, 2020 |
|
|
|
(1) |
|
Carry
Forward Securities |
|
Other |
|
Warrants |
|
|
415(a)(6) |
|
|
|
(1)(2)(3) |
|
|
|
|
|
|
|
(1)(3) |
|
|
|
|
|
|
|
(1) |
|
|
|
S-3
|
|
|
|
333-
239965 |
|
|
|
August
11, 2020 |
|
|
|
(1) |
|
Carry
Forward Securities |
|
Other |
|
Units |
|
|
415(a)(6) |
|
|
|
(1)(2)(3) |
|
|
|
|
|
|
|
(1)(3) |
|
|
|
|
|
|
|
(1) |
|
|
|
S-3
|
|
|
|
333-
239965 |
|
|
|
August
11, 2020 |
|
|
|
(1) |
|
Carry
Forward Securities |
|
Unallocated
(Universal) Shelf |
|
Unallocated
(Universal) Shelf |
|
|
415(a)(6) |
|
|
$ |
27,406,641.50
(1)(2)(3) |
|
|
|
|
|
|
$ |
27,406,641.50
(1)(2)(3) |
|
|
|
|
|
|
|
(1) |
|
|
|
S-3
|
|
|
|
333-
239965 |
|
|
|
August
11, 2020 |
|
|
$ |
3,557.38
(1) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Carry
Forward Securities |
|
Equity |
|
Common
Stock, $0.001 par value per share |
|
|
415(a)(6) |
|
|
|
(1)(2)(3) |
|
|
|
|
|
|
|
(1)(3) |
|
|
|
|
|
|
|
(1) |
|
|
|
S-3
|
|
|
|
333-
229106 |
|
|
|
May
23, 2019 |
|
|
|
(1) |
|
Carry
Forward Securities |
|
Equity |
|
Preferred
Stock, $0.001 par value per share |
|
|
415(a)(6) |
|
|
|
(1)(2)(3) |
|
|
|
|
|
|
|
(1)(3) |
|
|
|
|
|
|
|
(1) |
|
|
|
S-3
|
|
|
|
333-
229106 |
|
|
|
May
23, 2019 |
|
|
|
(1) |
|
Carry
Forward Securities |
|
Other |
|
Warrants |
|
|
415(a)(6) |
|
|
|
(1)(2)(3) |
|
|
|
|
|
|
|
(1)(3) |
|
|
|
|
|
|
|
(1) |
|
|
|
S-3
|
|
|
|
333-
229106 |
|
|
|
May
23, 2019 |
|
|
|
(1) |
|
Carry
Forward Securities |
|
Other |
|
Units |
|
|
415(a)(6) |
|
|
|
(1)(2)(3) |
|
|
|
|
|
|
|
(1)(3) |
|
|
|
|
|
|
|
(1) |
|
|
|
S-3
|
|
|
|
333-
229106 |
|
|
|
May
23, 2019 |
|
|
|
(1) |
|
Carry
Forward Securities |
|
Unallocated
(Universal) Shelf |
|
Unallocated
(Universal) Shelf |
|
|
415(a)(6) |
|
|
$ |
15,000,000.00
(1)(2)(3) |
|
|
|
|
|
|
$ |
15,000,000.00
(1)(2)(3) |
|
|
|
|
|
|
|
(1) |
|
|
|
S-3
|
|
|
|
333-
229106 |
|
|
|
May
23, 2019 |
|
|
$ |
1,818.00
(1) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
Offering Amounts |
|
|
$ |
50,000,000 |
|
|
$ |
6,212.17
|
|
|
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Total
Fees Previously Paid |
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$ |
5,375.38
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Total
Fee Offsets |
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-
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Net
Fee Due |
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$ |
836.79 |
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(1) |
The
Registrant previously registered $15,000,000 in aggregate offering price of securities pursuant to the Registration Statement on
Form S-3 (File No. 333-229106) filed on December 31, 2018, and initially declared effective on May 23, 2019, as amended from
time to time (the “First Registration Statement”), $15,000,000 of which remains unsold as of the date of filing of this
registration statement (the “First Registration Statement Unsold Securities”). The Registrant also previously registered
$35,000,000 in aggregate offering price of securities pursuant to the Registration Statement on Form S-3 (File No. 333-239965) filed
on July 21, 2020, and declared effective on August 11, 2020 (the “Second Registration Statement” and, together
with the First Registration Statement, the “Prior Registration Statements”), $27,406,641.50 of which remains unsold as
of the date of filing of this registration statement (the “Second Registration Statement Unsold Securities” and, together
with the First Registration Statement Unsold Securities, the “Unsold Securities”). The Registrant expects to carry forward
to this registration statement the Unsold Securities pursuant to Rule 415(a)(6) under the Securities Act of 1933, as amended. The
Registrant previously paid a registration fee of $1,818.00 in connection with the filing of the First Registration Statement, of
which $1,818.00 relates to the First Registration Statement Unsold Securities, and a registration fee of $4,543.00 in connection
with the filing of the Second Registration Statement, of which $3,557.38 relates to the Second Registration Statement Unsold Securities.
The $5,375.38 previously paid filing fee relating to the Unsold Securities under the Prior Registration Statements will continue
to be applied to such Unsold Securities registered on this registration statement. For reasons stated above, the net registration
fee paid in connection with the Unsold Securities is $0. |
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(2) |
Pursuant
to Rule 416 of the Securities Act, this Registration Statement also includes additional shares of common stock issuable upon stock splits,
stock dividends or similar transactions. These offered securities may be sold separately, together or as units with other offered securities.
An unspecified number of securities or aggregate principal amount, as applicable, is being registered as may from time to time be offered
at unspecified prices. |
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(3) |
Pursuant to Rule 457(o)
under the Securities Act, which permits the registration fee to be calculated on the basis of the maximum offering price of all the
securities listed, the table does not specify by each class information as to the amount to be registered, proposed maximum offering
price per unit or proposed maximum aggregate offering price. The aggregate public offering price of securities sold by the Registrant
(including newly listed securities and carry-forward securities) will not exceed $50,000,000. |
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(4) |
To
the extent that, after the filing date hereof and prior to the effectiveness of this registration statement, the Registrant sells any
Unsold Securities pursuant to the Prior Registration Statements, the Registrant will identify in a pre-effective amendment to this registration
statement the updated amount of Unsold Securities from the Prior Registration Statements to be included in this registration statement
pursuant to Rule 415(a)(6). Pursuant to Rule 415(a)(6), the offering of the Unsold Securities under the Prior Registration Statements
will be deemed terminated as of the date of effectiveness of this registration statement. |
Table
2: Fee Offset Claims and Sources
N/A
Table
3: Combined Prospectuses
N/A
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